Ng Yok Kwang v Cimb Bank Berhad (JA-22NCvC-46-04/2023)

This is a claim by the Estate of Ng Choon Luk @ Ng Choon Lak (deceased), brought through the Administrator Ng Yok Kwang ("Plaintiff"), against CIMB Bank Berhad ("the Defendant") for negligence and breach of banking duty arising from unauthorised ATM withdrawals and MEPS fund transfers from the deceased's current account.

The trial was conducted on 22 December 2025 where 1 witness testified for each parties. i.e. SP1 for the Plaintiff and SD1 (Noorhisham bin Ismail, Customer Service Manager) for the Defendant. Parties filed their written submissions and bundle of authorities and the Court now delivers its decision. Background

The following facts were agreed between the parties pursuant to Enclosure 12 –

(a) The deceased was a CIMB Preferred Customer holding Current Account No. 8006170118;

(b) as at 21 June 2022, the account balance was RM536,563.19;

(c) the deceased's cheque for RM10,865.10 was dishonoured on 13 July 2022 due to insufficient funds;

(d) a police report was lodged on 14 July 2022. The Defendant received the police report around 18 July 2022;

(e) a notice of demand for RM545,000.00 was issued by the Plaintiff's solicitors on 23 November 2022; and

(f) on 8 December 2022, the Defendant requested time to investigate the claim.

Between 24 June 2022 and 7 July 2022 (14 consecutive days), the following withdrawals were effected from the deceased's account via ATM cash withdrawals and MEPS fund transfers – DATE ATM MEPS CHEQUES

24.6.2022 10,000.00 30,000.00 - 40,000.50 25.6.2022 10,000.00 30,000.00 - 40,000.50 26.6.2022 10,000.00 30,000.00 - 40,000.50 27.6.2022 10,000.00 30,000.00 2,832.64 42,833.64 28.6.2022 10,000.00 30,000.00 - 40,000.50 29.6.2022 10,000.00 30,000.00 7,518.79 47,519.79

30.6.2022 10,000.00 30,000.00 4,414.86 44,415.86 1.7.2022 10,000.00 30,000.00 - 40,001.00 2.7.2022 10,000.00 - - 10,000.00 3.7.2022 10,000.00 30,000.00 - 40,000.50 4.7.2022 10,000.00 30,000.00 - 40,000.50 5.7.2022 10,000.00 30,000.00 - 40,000.50 6.7.2022 10,000.00 30,000.00 - 40,000.50 7.7.2022 - 25,000.00 - 25,000.50 TOTAL 130,000.00 385,000.00 14,766.29 529,774.79

It is undisputed that this pattern of withdrawals, approximately RM40,000.00 per day for 14 consecutive days via ATM and MEPS, was dramatically different from the deceased's established transaction profile over 30 years as a Preferred Customer. SD1 confirmed that the deceased's normal usage consisted primarily of cheque payments and JomPay utility transactions, with minimal ATM or MEPS activity prior to June 2022. The Plaintiff's Case

The Plaintiff's case, as pleaded in the Statement of Claim and elaborated in Written Submissions (Enclosure 35) and Reply Submissions (Enclosure 47), is founded primarily on the Quincecare duty. This duty, derived from Barclays Bank plc v Quincecare Ltd [1992] 4 All ER 363 and recognised in Malaysia in Public Bank Berhad & Anor v. Exporaya Sdn Bhd [2012] 6 MLRA 466, imposes an implied duty on banks to refrain from executing a customer's order when the bank is "put on inquiry" that the transaction may be fraudulent.

The Plaintiff contends that the Defendant was "put on inquiry" by the following circumstances –

(a) 14 consecutive days of unusual withdrawals totalling RM529,774.79;

(b) daily withdrawals of approximately RM40,000, representing the maximum daily limits;

(c) a sudden and dramatic shift from the deceased's established pattern of cheques and JomPay to high-volume ATM/MEPS withdrawals;

(d) the deceased was an 85-year-old vulnerable customer whose profile was well known to the Bank over 30 years.

The Plaintiff further relies on –

(a) the Defendant's own Terms and Conditions, specifically Clause 21.1(iv) of the Current Account T&C, which empowers the Defendant to freeze an account upon suspicion of fraudulent activities or when a police report is lodged;

(b) Clause 13.2(c) of the Mastercard T&C, which permits termination of card use if suspicious or abnormal transactions are detected;

(c) SD1's admissions at trial that the Defendant has fraud detection systems but took no protective steps during the 14-day fraud period;

(d) the Singapore Court of Appeal decision in Hsu Ann Mei Amy (personal representative of the estate of Hwang Cheng Tsu Hsu, deceased) v Oversea-Chinese Banking Corp Ltd [2011] SGCA 3, for the proposition that banks may be put on notice when dealing with elderly or infirm customers susceptible to third-party pressure.

The Plaintiff concedes RM120,000.00 (representing the first three days' withdrawals from 24-26 June 2022) as the deceased's contributory negligence, on the basis that the Bank could not reasonably have detected the pattern within the first three days. The Plaintiff accordingly seeks judgment for RM425,000.00 (RM545,000.00 less RM120,000.00). The Defendant's Case

The Defendant's case, as set out in the Re-Amended Defence (Enclosure 30), Written Submissions (Enclosure 37) and Reply Submissions (Enclosure 43), is that all transactions were validly authorised using the deceased's own debit card and PIN. The Defendant relies heavily on the UK Supreme Court decision in Philipp v Barclays Bank UK plc [2023] 3 WLR 284 for the proposition that the Quincecare duty applies only to instructions from agents whose authority is in doubt, not to cases where the customer himself gives instructions or provides his credentials to third parties.

The Defendant's core submissions are as follows –

(a) The deceased voluntarily disclosed his PIN and physically surrendered his debit card to the scammers by placing it on a rubbish bin outside his house and sending a photograph of its location via WhatsApp. This constitutes a breach of Clauses 2.6 and 5.2(a) of the Mastercard T&C, which require the customer to keep the PIN secret and to use utmost care to prevent fraudulent use of the card;

(b) the chain of causation was broken by the deceased's own voluntary acts (novus actus interveniens), citing Khee San Berhad & Anor v OCBC (M) Berhad [2021] MLJU 645 and Koike (M) Sdn Bhd v CIMB Bank Berhad [2018] MLRHU 1001;

(c) The BNM guidelines (FTFC, RMIT, AML/CFT) relied upon by the Plaintiff were not pleaded in the Statement of Claim and do not create private rights of action, citing Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944, Lee Cheong Chee v. HSBC Bank Malaysia Berhad [2021] 1 LNS 439, and Pan Northern Air Services Sdn Bhd v. Maybank Islamic Bhd & Another Appeal [2021] 3 CLJ 34;

(d) the Defendant was not notified of any problem until 18 July 2022, seven days after the final fraudulent transaction on 7 July 2022;

(e) once notified, the Defendant immediately blocked the deceased's debit card;

(f) the root cause of the fraud was the scam call received by the deceased, citing RHB Bank Bhd v. Mat Isa Che Dir [2025] CLJU 681 where the Court held that where the scam call was the genesis of the fraud, it would be "unjust to place the blame on the bank". Analysis A. Evidence at Trial SP1's Evidence (Plaintiff's Witness)

SP1, Ng Yok Kwang, is the son of the deceased and the Administrator of the Estate. His evidence was based substantially on what the deceased had told him before the deceased passed away.

Under cross-examination by learned counsel for the Defendant, SP1 made the following admissions –

(a) the deceased received a telephone call from persons impersonating police officers ("Sergeant Chew" and "Tuan Ling");

(b) the deceased disclosed his PIN number to these unknown persons;

(c) the deceased placed his debit card on a rubbish bin outside his house, photographed the location and sent the photograph via WhatsApp to the scammers for collection;

(d) SP1's knowledge of these events came from what the deceased told him (hearsay); and

(e) SP1 could not identify which shares were allegedly sold by the deceased to generate the RM536,099.82 deposit on 24 June 2022.

When asked : "So I am suggesting to you the deceased also divulged his PIN number to these people impersonating as Sergeant Chew and Tuan Ling. Do you agree, disagree, or do you not know?" SP1 answered : "Yes". SD1's Evidence (Defendant's Witness)

SD1, Noorhisham bin Ismail, is the Customer Service Manager at CIMB Bank Johor Bahru. His evidence addressed the Bank's systems, procedures and the events surrounding the fraud.

Critically, under cross-examination by learned counsel for the Plaintiff, SD1 made the following admissions –

(a) CIMB has a fraud detection system capable of detecting unusual transaction patterns;

(b) CIMB has a monetary system to detect high-risk customers;

(c) CIMB must comply with BNM framework for detecting unusual and suspicious transactions;

(d) SD1 and all CIMB officers are trained on these BNM guidelines;

(e) under Clause 21.1(iv) of the Current Account T&C, the Bank has the power to freeze an account if it is suspicious of fraudulent activities;

(f) when asked why this power was not exercised during the 14-day fraud period, SD1 acknowledged "what was not done";

(g) during the 14-day period, no call was made to the deceased, no SMS alert was sent and no blocking or restricting of the account was implemented; and

(h) SD1 agreed that calling the customer, sending SMS alerts, or restricting the account are "protective steps that should safeguard the account of the customer".

These admissions by SD1 are significant. They establish that the Defendant had both the capability and the contractual authority to intervene, but did not do so despite a 14-day pattern of unusual withdrawals that deviated dramatically from the deceased's established profile. B. Issues for Determination

Having considered the pleadings, evidence, and submissions, the following issues arise for determination –

(a) Whether the BNM guidelines can be considered despite not being specifically pleaded;

(b) Whether the Quincecare duty applies to this case;

(c) Whether the Defendant breached its duty of care to the deceased;

(d) Whether the chain of causation was broken by the deceased's voluntary conduct (novus actus interveniens);

(e) If liability is established, what is the appropriate apportionment having regard to contributory negligence; and

(f) The quantum of damages recoverable.

The parties filed their respective Issues to be Tried pursuant to Enclosure 11 dated 13 September 2023. The Plaintiff raised five issues (Issues 1 to 5) and the Defendant raised three issues (Issues 6 to 8, with sub-issues). Having considered the pleadings, the evidence adduced at trial, and the written submissions of both parties, this Court has consolidated and reframed the parties' issues into the six issues set out above. The Plaintiff's Issues 1, 2, 4 and 5 are addressed under Issues (b), (c) and (f) above. The Plaintiff's Issue 3 (whether the Defendant is a victim of scam) is addressed under Issue (d) on causation. The Defendant's Issue 6 (the nature and quantum of the Transactions) is addressed under Issue (f) on quantum. The Defendant's Issues 7(a), 7(b) and 7(c) (whether the Transactions were authorised and binding) are addressed under Issues (b) and (c) on the Quincecare duty and breach of duty. The Defendant's Issues 8(a) to 8(d) (causation, exclusion of liability under the T&C and contributory negligence) are addressed under Issues (d) and (e) on causation and apportionment. This Court is satisfied that the reframed issues cover all matters raised by both parties in their respective Issues to be Tried.

Based on the above backgrounds, the Court analysis and findings are as follows – Issue (a) : The Pleading Objection on BNM Guidelines

The Defendant submits that the Plaintiff's reliance on BNM guidelines (FTFC Policy, RMIT, AML/CFT) is impermissible as they were not specifically pleaded in the Statement of Claim. The Defendant cites Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944 where the Federal Court held – "It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded... In the premise, we will only consider the pleaded case of the parties before us".

This Court has considered this objection carefully. In this Court’s view, Samuel Naik is distinguishable from the present case for the following reasons.

First, in Samuel Naik, the Federal Court was concerned with a party attempting to introduce new and contradictory facts at the submission-in-reply stage, specifically, the assertion that MPM was not the registered proprietor at the material time, which contradicted the agreed facts and would "completely change the character of the appellant's defence". The Court held that such unpleaded facts could not be considered as they would cause prejudice to the opposing party.

The present case is materially different. BNM guidelines issued under the Financial Services Act 2013 [Act 758] are subsidiary legislation, not facts requiring pleading. As observed by the Court of Appeal in Dato’ Dr Abd Wahab Abd Ghani v. Mohd Rashid Mohd Noor & Ors And Another Appeal [2025] 7 4 MLRA 22 (cited by the Plaintiff) – "The guidelines issued by BNM under BAFIA have the force of law... the guidelines issued by BNM under these repealed Acts are deemed to be standards to have been lawfully specified under the FSA and shall have full force and effect until amended or revoked".

Courts take judicial notice of legislation and subsidiary legislation. A party does not need to specifically plead the Companies Act 2016 [Act 777] or Act 758. These are matters of law, not facts.

Second, the Defendant cannot claim surprise or prejudice. SD1 admitted at trial that –

(a) CIMB must comply with BNM framework for detecting unusual/suspicious transactions;

(b) SD1 and all CIMB officers are trained on these guidelines; and

(c) CIMB has fraud detection systems. The substance of the regulatory framework was squarely in issue at trial and addressed in evidence.

Third and most importantly, the Plaintiff's case does not depend on BNM guidelines alone. The Quincecare duty, which was pleaded, provides an independent legal basis for the claim. The Defendant's own Terms and Conditions [Clauses 21.1(iv) and 13.2(c)] are in evidence and give the Bank contractual powers to intervene upon suspicion of fraud. SD1's admissions establish that these powers existed but were not exercised. Even if this Court were to disregard the BNM guidelines entirely, the Plaintiff's case is established through these alternative grounds.

For these reasons, this Court declines to exclude consideration of the BNM guidelines on the pleading objection. However, this Court emphasises that this decision on liability does not depend solely on breach of BNM guidelines. The Quincecare duty and the Defendant's contractual powers under its own T&C provide sufficient basis for the findings that follow. Issue (b) : Whether the Quincecare Duty Applies

The Quincecare duty, as articulated by Steyn J in Barclays Bank plc v. Quincecare Ltd [1992] 4 All ER 363, provides that a bank has an implied duty to refrain from executing a customer's order when the bank is "put on inquiry" that the order may be an attempt to misappropriate the customer's funds.

This duty was recognised in Malaysia by the Court of Appeal in Public Bank Berhad & Anor v. Exporaya Sdn Bhd [2012] 6 MLRA 466, where it was held – "In my judgement the sensible compromise, which strikes a fair balance between competing considerations, is simply to say that a banker must refrain from executing an order if and for as long as the banker is 'put on inquiry' in the sense that he has reasonable grounds (although not necessarily proof) for believing that the order is an attempt to misappropriate the funds of the company".

The Defendant relies on the UK Supreme Court decision in Philipp v Barclays Bank UK plc [2023] 3 WLR 284 which held that the Quincecare duty applies only where the bank is executing instructions from an agent whose authority is in doubt. Where the customer himself authorises the payment (even if deceived by third parties), the bank's duty is simply to execute those instructions.

Philipp is a decision of the UK Supreme Court and is not binding on this Court. While it is persuasive, this Court is not bound to follow it, particularly where the factual matrix differs and where Malaysian courts may take a different approach to the balance between customer protection and banking efficiency.

In this Court’s judgment, Philipp is distinguishable on its facts. In Philipp, the customer personally instructed the bank to make payments the bank simply executed those instructions. Here, the situation is different. The deceased did not instruct CIMB to make payments. Rather, the scammers obtained the deceased's debit card and PIN and used them directly at ATMs and for MEPS transfers. The deceased was not present at the transactions and gave no contemporaneous instructions to the Bank.

More fundamentally, even if Philipp were to apply, the Plaintiff's case does not rest on Quincecare alone. The Plaintiff also relies on the Bank's own contractual powers under Clauses 21.1(iv) and 13.2(c) of its Terms and Conditions. These clauses gave the Bank authority to intervene upon detecting suspicious or abnormal transactions. The question is whether the Bank should have exercised those powers. Issue (c) : Whether the Defendant Breached Its Duty

This Court now turns to the central question: whether the Defendant breached its duty of care to the deceased.

The evidence establishes the following –

(a) The deceased was an 85-year-old CIMB Preferred Customer of 30 years' standing;

(b) His established transaction profile consisted of cheque payments and JomPay utility transactions, with minimal ATM or MEPS usage;

(c) Over 14 consecutive days, withdrawals totalling RM529,774.79 were made at the rate of approximately RM40,000.00 per day, representing the maximum daily limits;

(d) This pattern was a drastic deviation from the deceased's normal usage;

(e) The Defendant has fraud detection systems capable of detecting unusual patterns (SD1's admission);

(f) The Defendant has power under Clause 21.1(iv) to freeze accounts upon suspicion of fraud (SD1's admission);

(g) No protective steps were taken - no call, no SMS, no account restriction (SD1's admission); and

(h) SD1 acknowledged that such steps "should safeguard the account of the customer" and acknowledged "what was not done".

In Selangor United Rubber Estate Ltd v Cradock (a bankrupt) (No 3) [1968] 2 Lloyd's Rep 289 (cited by the Plaintiff), the Court observed – "What intervention is appropriate in that exercise of reasonable care and skill again depends on circumstances. Where it is to inquire, the failure to make inquiry is not excused by the conviction that the inquiry would be futile, or that the answer would be false".

Applying this principle, the Defendant cannot escape liability by arguing that it did not know of the fraud. The Defendant had systems capable of detecting the unusual pattern. The Defendant had contractual powers to intervene. The Defendant chose not to exercise those powers despite a 14-day pattern that deviated dramatically from a long-established customer profile.

Furthermore, the Plaintiff cites Hsu Ann Mei Amy (personal representative of the estate of Hwang Cheng Tsu Hsu, deceased) v Oversea-Chinese Banking Corp Ltd [2011] SGCA 3 (Singapore Court of Appeal) for the proposition that banks may be put on notice when dealing with elderly or infirm customers. While this is a Singapore decision and not binding, this Court finds it persuasive. An 85-year-old customer suddenly engaging in maximum daily withdrawals for 14 consecutive days is precisely the kind of pattern that should have raised concerns.

This Court finds that the Defendant breached its duty of care by failing to exercise its fraud detection capabilities and contractual powers under Clause 21.1(iv) during the 14-day fraud period. The Defendant had the means to detect, the authority to intervene and the opportunity to prevent further losses after the pattern became apparent. It did nothing.

This Court also addresses the Defendant's reliance on the Federal Court’s decision in Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2006] 5 MLJ 1 for the proposition that a bank is entitled to treat a customer's mandate at face value. This Court does not dispute that general principle. However, the Federal Court itself qualified this duty with the words "save in extreme cases" and "unless there are grounds for believing that there was a misuse of authority for the purpose of committing a fraud". In the present case, 14 consecutive days of maximum daily withdrawals from an 85-year-old Preferred Customer whose established profile over 30 years showed minimal ATM or MEPS activity constitutes precisely the kind of extreme circumstance contemplated by the Federal Court's qualification. The Defendant cannot rely on the general rule while ignoring the exception that the very same authority establishes.

The Defendant further relies on Noor Farekh Mohamed Kassim v. Bank Kerjasama Rakyat Malaysia Berhad [2026] 2 CLJ 733 for the proposition that the proximate cause of loss was the customer's own decision to cede control of her banking credentials. That case is distinguishable. In Noor Farekh binti Mohamed Kassim, the bank conducted a timely and thorough investigation consistent with its internal protocols and regulatory guidelines. In the present case, by contrast, SD1 admitted that no investigation, no call, no SMS alert and no account restriction was implemented during the entire 14-day fraud period, despite the Defendant having fraud detection systems capable of detecting the unusual pattern. The Defendant's inaction here stands in stark contrast to the bank's conduct in Noor Farekh Mohamed Kassim.

As regards the Plaintiff's pleaded claim for breach of fiduciary duties, this Court accepts the settled position in Malaysian law that the banker-customer relationship is not fiduciary in nature. As held by the Court of Appeal in Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor [2014] 2 CLJ 773, the nature of the banker-customer relationship is entirely contractual and there is nothing fiduciary about it. The claim for breach of fiduciary duties accordingly fails. However, this does not affect the outcome, as liability is established on the grounds of negligence and breach of the Defendant's contractual duty to exercise its fraud detection powers under Clause 21.1(iv) of its own Terms and Conditions. Issue (d) : Causation and Novus Actus Interveniens

The Defendant submits that the chain of causation was broken by the deceased's own voluntary acts specifically, disclosing his PIN and surrendering his card to the scammers. The Defendant characterises this as novus actus interveniens (an intervening act that breaks the chain of causation).

The Defendant cites Khee San Berhad & Anor v OCBC (M) Berhad [2021] MLJU 645 and RHB Bank Bhd v. Mat Isa Che Dir [2025] CLJU 681 for the proposition that where the customer's own acts caused the loss, or where the scam call was the root cause, the bank should not be blamed.

This Court accepts that the deceased's disclosure of his PIN and surrender of his card were causative of the initial losses. He breached his contractual obligations under Clauses 2.6 and 5.2(a) of the Mastercard T&C. This conduct was voluntary, albeit induced by deception.

However, this Court does not accept that the deceased's conduct breaks the chain of causation entirely. The fraud was not instantaneous, it occurred over 14 consecutive days. After the first few days, a pattern emerged that was objectively detectable by the Defendant's systems. The Defendant's failure to exercise its powers under Clause 21.1(iv) after the pattern became apparent was an independent breach that contributed to the continuing losses.

As submitted by the Plaintiff, citing Pax Investment Limited v. Standard Chartered Bank Malaysia Berhad [2025] MLRHU 2455– "It was the defendant who was in a direct contractual relationship with the plaintiff and who had control over the plaintiff's funds. The defendant, having released the funds negligently, is the proper party against whom the plaintiff should seek redress".

Applying the "but for" test : but for the Defendant's failure to detect and intervene after the pattern became apparent (say, after Day 3), the remaining losses (approximately RM409,000.00) would have been prevented. The deceased's initial conduct enabled the fraud, but the Defendant's inaction allowed it to continue unchecked for 11 further days.

This Court finds that causation is not entirely broken. Both the deceased's conduct and the Defendant's failure to intervene were causative of the loss. This is an appropriate case for apportionment under Section 12 of the Civil Law Act 1956.

The Defendant submits that the Plaintiff failed to mitigate the alleged loss by not pursuing recovery from the identifiable recipients of the transferred funds, namely How Kee Fish (Hong Leong Bank Berhad) and Mohamad Shah (Malayan Banking Berhad), whose names appear in the bank statements. This Court does not accept this submission. The duty to mitigate requires a claimant to take reasonable steps, not to embark on speculative litigation against third parties who may be untraceable mule account holders. The names appearing in bank statements are account names only, the Plaintiff has no addresses, contact details or means of enforcement against these individuals, who in all likelihood are themselves either complicit in or victims of the scam network. The reasonable course was to claim against the Defendant, who was in a direct contractual relationship with the deceased and who had control over the deceased's funds. This is consistent with the principle in Pax Investment Limited v. Standard Chartered Bank Malaysia Berhad [2025] MLRHU 2455. The Defendant's mitigation argument is rejected.

The Defendant further contends that the Plaintiff has failed to prove that the sum of RM536,099.82 deposited into the deceased's CIMB Account on 24 June 2022 belonged to the deceased, as SP1 could not identify which shares were sold to generate these proceeds. The Defendant invites this Court to draw an adverse inference under Section 114(g) of the Evidence Act 1950 [Act 56].

This Court declines to do so for the following reasons. First, the monies were deposited into the deceased's own current account and the Defendant's own case is that the subsequent transactions were validly authorised from that account. The Defendant cannot simultaneously assert that the transactions were properly authorised from the deceased's account while contending that the funds in that account were not the deceased's. Second, the Defendant cites Lim Chok v Lim Chik Lock [2014] 7 MLJ 74 for the proposition that money in a personal account does not necessarily belong to the account holder. That case concerned a specific finding that identified funds belonged to a company, not the individual. No equivalent evidence has been led here to suggest the RM536,099.82 belonged to anyone other than the deceased. Third, the Defendant itself processed the deposit and maintained the account, if it had concerns about the provenance of the funds, it was open to the Defendant to raise this with the customer at the time of deposit. Issue (e) : Apportionment of Liability

Section 12(1) of the Civil Law Act 1956 [Act 67] provides – "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons... the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".

This Court must determine the respective shares of responsibility. The following factors weigh against the deceased –

(a) He voluntarily disclosed his PIN in breach of Clause 2.6 of the Mastercard T&C;

(b) He physically surrendered his card in breach of Clause 5.2(a);

(c) He failed to notify the Bank for 7 days after the fraud ended (14 July police report, fraud ended 7 July); and

(d) He was induced by deception, but his acts were nonetheless deliberate.

The following factors weigh against the Defendant –

(a) The Defendant's fraud detection systems failed to flag 14 consecutive days of maximum daily withdrawals;

(b) The Defendant had contractual power under Clause 21.1(iv) to freeze the account but did not exercise it;

(c) The Defendant took no protective steps, no call, no SMS, no intervention;

(d) The deceased was an 85-year-old vulnerable customer of 30 years' standing whose profile was well known;

(e) SD1 admitted that protective measures "should safeguard the account of the customer" and acknowledged "what was not done".

The Defendant cites Tetuan C. Sukumaran v Bank Simpanan Nasional [2022] MLJU 2090 (30:70 apportionment) and Kok Weng Tuck & Ors v AmBank (M) Berhad [2016] MLJU 1498 (30% contributory negligence) as authorities on apportionment in similar cases.

Having regard to all the circumstances, this Court apportions liability at 40% to the deceased and 60% to the Defendant. While the deceased's voluntary disclosure of his PIN and card was serious, the Defendant as a sophisticated financial institution with fraud detection systems and contractual powers to intervene bears the greater responsibility for failing to protect a vulnerable elderly customer over a 14-day period. Issue (f) : Quantum of Damages

The agreed total of fraudulent withdrawals is RM529,774.79 (not RM545,000.00 as claimed). The Plaintiff has not satisfactorily proven the higher figure.

Applying the 60% apportionment – RM529,774.79 X 60% = RM317,864.87

As for the claim for general damages of RM500,000.00, the Defendant correctly submits that no evidence was led at trial to support this claim. The Plaintiff has not proven any specific loss, injury or damage beyond the financial loss itself. The claim for general damages is accordingly dismissed. Court’s Decision

For the reasons set out above, this Court makes the following orders–

(a) Judgment for the Plaintiff in the sum of RM317,864.87 (being 60% of RM529,774.79);

(b) Interest at 5% per annum on RM317,864.87 from 24 June 2022 until the date of judgment;

(c) Interest at 5% per annum on RM317,864.87 from the date of judgment until full payment;

(d) The claim for general damages of RM500,000.00 is dismissed; and

(e) Costs of RM 100,000 subject to the allocatur. Dated : 3 March 2026 -signed-Dr Noradura binti Hamzah Judicial Commissioner High Court of Malaya of Civil 2 Johor Bahru Solicitor for the Plaintiff : : MOB Zaimil Hasra Messrs Thara Singh Sidhu & Kushvinder (Johor Bahru). Solicitor for the Defendant : : Daphnne Awzhi Messrs Rahmat Lim & Partners (Kuala Lumpur)